There are a few things still existing in Virginia today that are remnants of the old days that need to be swept away. Some are the result of Democrat machine politics intended to prevent the GOP from ever gaining a foothold in the Commonwealth such as the lack of party registration (and until just a few years ago the lack of candidates’ party IDs on the ballot — hence the origin of the infamous “sample ballot” at the polls on Election Day) and the one-term and you’re out rule for governors. Others are vestiges of days gone by that most other states have watered down or completely rejected over the years, such as the Dillon Rule that prevents localities from doing as they see fit without first having to beg permission from the General Assembly to opt out of one-size fits all “solutions” imposed upon them.
Fortunately, many of these relics are being addressed. There is a proposal that might actually go somewhere this time to allow governors to serve two consecutive terms. There is an ongoing lawsuit to force closed party primaries, one step towards having party registration. And then, there are the proposals coming forth from the House GOP to turn back roads to the counties, cities and towns.
The state also would give localities money it currently spends on maintaining the roads and would turn over Virginia Department of Transportation facilities and equipment to them so they can do it themselves, among other incentives.
Now really. Think about the way things are today. If you live in a subdivision, it is the state’s responsibility to pave, plow and maintain the street in front of your house? I’m not talking about a four lane divided highway here, I’m talking about a neighborhood street that is only wide enough for one car to get by if cars are parked on both sides of the road. That is just plain ridiculous.
I have yet to talk to anyone who has ever lived in another state where it is this way. From what I have been able to gather, every other state has their localities in charge of subdivision streets. These states have their DOTs handle the interstates and state routes while the counties take care of county roads. That makes perfect sense to me and it apparently does to the delegates putting forth these bills as well.
While the General Assembly has only been in GOP hands since 1999, it is nice to see that they are finally to the point where they can roll back some of the dusty old remnants of a century of the Democrats’ “the state knows better than you and your local officials what is best for you” attitude and start bringing Virginia government into the 21st century. This is a good first step towards giving more power to the citizens and their local leaders — the first nail in the coffin of the Dillon rule.
Perhaps there is no better example of why the Dillon rule is outdated today than Judge John Forest Dillon’s very own reasoning 150 years ago:
We’re letting THIS guy define the relationship between Virginia localities and the Commonwealth?
Dillon had it exactly backwards. Municipalities are not in essence creations of the state. It is the state that derives its power from the governed and the closest representatives to the citizens are their locally elected leaders. If one is to trust the people to make the best decisions for themselves, then one must reject the very premise of Dillon.
Judge Dillon died May 16, 1914. Virginia should lay his outdated rule to rest before the 100th anniversary of his death and continue moving into the 21st century.
Filed under: Dillon Rule, Razing Kaine / Timmy!, Taxes, Transportation, Virginia General Assembly, Virginia Politics
Tremendous post! Its stuff like this Republicans need to focus on in Virginia. For too long now this debate on Transportation has been nothing more than a debate on tax cuts. This is a great example at ways the GOP is being flexible and innovative beyond just throwing money at the problem.
Jim:
Fantastic post. When Dillon issued this ruling in 1865, local governments were Tatooine cantinas of corruption. Basically, the local stuff was too “small fry” to merit great attention in spite of all the federal and state issues that were going on at the time (i.e. The Civil War). Additionally, citizen & media oversight were virtually nonexistent in those days.
However, in the 21st century with high-speed, electronic media and personal computing capabilities, citizens and media can not only provide oversight they can also bring publicity to issues of abuse and corruption. I suggest blogs are the quintessential example.
Maybe in 1865, the Dillon rule was the right decision at the right time. However, in 2006 its time has come and gone.
The sovereign of the Commonwealth is The People. Individual citizens.
The cities and counties are creations of the Commonwealth and have been since 1619 when the first General Assembly met.
The best part of the Dillon Rule is keeping the persons who can raise taxes – all accountable to the vote of the sovereigns.
James:
Amen. Under no circumstances can the authority to raise/lower taxes be abdicated by elected state legislators…Delegates AND Senators. Now, we must find a way to balance that prime directive with the growing reality that zoning and growth decisions can no longer be made in a county/city vacuum. For instance, if Caroline County (my county) decides to authorize a 20,000 home housing development, that decision will affect the transportation infrastructure of Caroline, Spotsylvania, Stafford, Prince William, Fairfax and the Peoples’ Republics’ of Alexandria and Arlington…..because most of these new Caroline County homeowners will be working in northern Virginia. We need to find a way to keep neighboring counties talking to each other so we can balance new growth with transportation infrastructure.
Riley,
The Dillon Rule is not the culprit. Dillon is simply a rule of interpretation. Specifically, a locality can only do those things specifically authorized by state law. Now, even in a Dillon state, the state government can authorize a wide variety of powers for local governments.
The opposite of the Dillon Rule is what is known as home rule, whereby localities have any power not prohibited by the state. Sounds like more local power at first, but bear in mind that in a home rule state the state government can and often does severly limit local power with a healthy menu of prohibitions.
Thus, whether a Dillon Rule state or a home rule state, state governments still hold the reins. The only difference is how those reins are held (i.e. how the laws are constructed).
Also, localities really are creations of the state. The states are the building block of government in this nation. They formed the muncipalities and they also formed the union.
Tyler:
You bring up some good points but, based on your post, I think we’re discussing 2 different things.
First of all, nobody’s disputing the authority of the Commonwealth (or other states in the Union) to govern the formation of political subdivisions (i.e. counties, cities, etc.).
Second, what we’re arguing here is that the Commonwealth does not need to micromanage the paving and maintenance of every little backroad in every county. That’s very different than the chartering of counties and cities. The Dillon Rule hampers a local government’s ability to make crisp, common sense decisions without enduring the wickets of state government bureaucracy.
NotNotJayHughes,
We are arguing some of the same point. My position is that Dillon does not hamper local government because if this were a home rule state, there would likely be stringent prohbitions against many things that are not currently prohibited.
Does there need to be more flexibility for localities? Maybe, maybe not, depending on the specific power in question; it is a point worthy of debate.
My only assertion regarding Dillon is that it is not the Dillon Rule in and of itself that prevents said flexibility. Dillon is only a rule of interpretation (or construction), and moreover, states that use a home rule system (the opposite of the Dillon Rule) can just as severly limit localities’ powers. The only difference is that is Dillon Rule states, laws regarding localities are generally “Thou Shalt” or “Thou May” with the lack of mention meaning that that a specific power is not granted while in home rule states the laws are generally written such that the limiting factor is a “Thou Shalt Not.” Either method of construction can arrive at the same result. All of the powers that local governments want can be granted to them in a Dillon Rule state with one act of the legislature, and likewise, can be prohibited to them in a home rule state in the same manner.
Dillon is only a rule of interpretation (or construction); in and of itself, it does not spell out a certain grant of power to localities. The same is true in home rule states. I both cases (Dillon and home rule) the true differences are not necessarily what powers local government has, but rather how those powers are expressed in the law.
Tyler, I hear what you are saying, i.e., that the end result could be the same. However, I have to agree with Riley ad NNJH here: the Dillon Rule should be scrapped in Virginia. Not only does the Dillon Rule hamper the ability of local governments to make local decisions, it also provides cover for those local electeds to hide behind when they don’t want to do something.
If the Dillon Rule is so great, why is it that VA is the last one to interpret it so strictly? Related – how come VA is the last state to have a single term governor? Is this really about the power being in the hands of the legislature and not the people?
Oh and Riley – party ID is only on the ballot for candidates of the GA and above. None of the local candidates have party ID on the ballot, even those who are nominated thru a normal process, such as the constitutional officers. And there is no will in the GA to change this.
Vivian — I hardly think that VA is the last state with such a strict Dillon Rule interpretation. Off hand, NC comes to mind as a similar state, and I am fairly certain that there are others.
You reference where power rests. Dillon or home rule does not vest power at a particular level; that choice only dictates how state law is constructed.
If Virginia were to become a home rule Commonwealth tomorrow, I am certain that there would also be a bevy of laws that delineated those things off limits to local governments.
Let us look at an example and assume that there were a group of localities that wanted to enact a widget tax. Under the current Dillon construction, I will grant that they could not unless the General Assembly approved such an action. For the purposes of this example, let us assume that the General Assembly voted against legislation to provide the power to localities to tax widgets. Now, under home rule, should we assume that the sense of the General Assembly would be any different? My thinking is that under home rule, the sense of the General Assembly would be the same, and as such, there would be a specific prohibition against said widget tax.
My point here is that the Dillon Rule is not the impediment to local power; it is the will of the General Assembly, the same as it would be under a home rule system.
So, Tyler, do you agree with Judge Dillon that “Those best fitted by their intelligence, business experience, capacity and moral character” usually do not hold local office? After all, that was the main reason for the rule to be implemented. In other words, Dillon thought local officials were stupid, corrupt yokels.
Riley,
No, of course not. There are good folks and not so good folks in local government, just as is the case with state governments and the federal government.
Again, you need to bear in mind that the Dillin Rule is simply a rule of how state law is constructed — that has been my point all along. In both Dillon Rule and home rule states, the law can be written in a way that s either very permissive or very restrictive with regard to local governments.
BTW Riley, what powers are you arguing that localities should have?
Tyler – NC does not interpret the Dillon Rule as strictly as Virginia. Actually, it was the comparison with the Charlotte area and Hampton Roads that made me acutely aware of the differences. In NC, counties and cities are able to do such things as revenue-sharing, that the GA will not allow here.
As for the Dillon Rule not being an impediment to local power – well, on that we will simply have to agree to disagree. I see too many instances in Hampton Roads – Norfolk in particular – in which the Dillon Rule prohibits the localities from making decisions.
BTW – one of the first conversations I had with Kaine after he was elected Lt Gov was whether he supported a loosening of the Dillon Rule. He said he did. In a bloggers’ call earlier this year with him, I raised the question again. He again said he would like to see it happen. This from a man who has served as a mayor, so he understands how the Dillon Rule crippled his ability to do what he thought best for the City of Richmond.
The GA is unwilling to release power to the localities because it means that the senator from, say, Salem, can still exercise control over what goes on in, say, Norfolk.
Vivian — again, it is not the Dillon Rule, but rather the preferences of a majority of the members of the General Assembly. Under home rule, a Senator from Salem can still exercise the same amount of control over Norfolk. The only difference is in how the laws are written, not necessarily how they work.
If you turn street maintenacne and plowing etc to the localities, expect major tax increases. Every locality will have it’s own transportation dept and it’s own buracracy and it’s own snow plows, the cheapest most efficient way to handle roars is by VDOT. There can be no question about that.
[...] Suggestions for a 21st Century Virginia (Still catching up on the blogging, here.) I note over at Virgina Virtucon this post with several suggestions on how Virginia can update its legal structure to address life in the 21st century. Good discussion going on there about the Dillon Rule, by the way. From Wikipedia: In Municipal Corporations (1872), Dillon explained that in contrast to the powers of states, which are unlimited but for express restrictions under the state or federal constitution, municipalities only have the powers that are expressly granted to them. This formulation of the scope of municipal power came to be known as the “Dillon Rule,” which states that municipal governments only have the powers that are expressly granted to them by the state legislature, those that are necessarily implied from that grant of power, and those that are essential and indispensable to the municipality’s existence and functioning. Any ambiguities in the legislative grant of power should be resolved against the municipality so that its powers are narrowly construed. However, when the state has not specifically directed the method by which the municipality may implement its granted power, the municipality has the discretion to choose the method so long as its choice is reasonable. [...]
[...] permission in order to do just about anything? We’ve been blasting the Dillon Rule for the better part of a year here on Virtucon. If Timmy! thinks that localities should not have to get permission from the [...]
See http://www.brookings.edu/reports/2003/01metropolitanpolicy_richardson.aspx
[...] Bringing VA into the 21st Century Posted on December 28, 2006 by Riley . . . [...]
[...] result could be achieved by waiving, updating, revising or even outright rescinding the antiquated Dillon Rule. In fact, Republican members of the House of Delegates previously proposed turning road [...]